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Judge questions doctors' argument that naming top OHIP billers would 'humiliate' them

A lawyer told judges there is no “compelling public interest” in releasing names of physicians with the highest OHIP billings, as the doctors fight to overturn an order that would make the information public.

Justice Ian Nordheimer questioned a lawyer's assertion that releasing the names of top-billing doctors would serve only to "name and shame" them. (Alex Tavshunsky for the Toronto Star)

A lawyer for the Ontario Medical Association argued that the names of top-billing physicians should remain under wraps because privacy has a high constitutional value. (Dreamstime)

Judges charged with deciding whether physicians’ OHIP billings should be made public have challenged an argument that the move would lead to the “shaming” of doctors.

The argument was put forth by Ontario Medical Association lawyer Joe Colangelo at a two-day judicial review hearing that wrapped up Tuesday. Doctors requested the review because they want the courts to quash an order from Ontario’s information and privacy commissioner to make physician-identified billings public.

“Publishing the names of the top … billers in my view accomplishes nothing other than naming and shaming,” Colangelo told a three-judge panel at Divisional Court.

Justice Ian Nordheimer questioned the assertion: “Why should they be humiliated? Because it was identified that they billed a certain amount?”

Nordheimer said doctors could simply respond by explaining what kind of procedures they did and how many times they did them.

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“You keep using expressions like ‘shame’ … It suggests that your members are concerned that they are not behaving themselves properly,” the judge said.

Colangelo argued that physicians would unfairly be put on the spot: “The question is going to be asked, ‘Why did you bill $1 million, why did you bill two (million), why did you bill six (million)?’”

Nordheimer asked whether taxpayers should be entitled to question who is receiving such sums from the government. “Isn’t that a good question about taxpayer dollars?”

Colangelo said doctors could not answer it without violating patient confidentiality.

Justice Frances Kiteley challenged the assertion that doctors would have to divulge patient names when explaining OHIP payments: “He can’t name patient names. But he certainly can say I did several hundred of procedure X.”

The case originated more than three years ago with a freedom of information request from the Star to Ontario’s Health Ministry for physician-identified data on the top 100 billers to the Ontario Health Insurance Plan.

The ministry granted partial access — payments and most medical specialties — but withheld physician names, deeming that their release would be an unjustified invasion of privacy.

(The data provided showed that the top 100 billers were paid a combined $191 million in 2012-13. The highest biller alone received payments of more than $6 million, while the second- and third-highest billers each claimed more than $4 million. Nineteen doctors received payments of more than $2 million each.)

The Star successfully appealed the ministry’s decision. Last year, the privacy commissioner ruled the data is business-related and therefore not protected under personal privacy provisions of the Freedom of Information and Protection of Privacy Act.

Colangelo argued that the physicians’ names should remain under wraps because privacy has a high constitutional value.

“Who really cares what the names are? The question is whether or not the ministry is properly administering a multibillion fund and whether the question of the proper operation of that fund … can be accomplished without disclosing names,” he said.

Lawyer Chris Dockrill, representing a group of doctors described as “several physicians affected by the order,” said the privacy commissioner’s ruling on the appeal was wrong because it departed from previous commissioner orders, which found physician billing information to be personal and therefore exempt from disclosure.

Lawyer Linda Galessiere, acting for a group of physicians described as “affected third-party doctors,” argued that the privacy commissioner’s ruling ignored harms doctors could suffer if their names and OHIP payments were made public. For example, such disclosure could adversely affect their families, she said.

Galessiere argued that there was no “compelling public interest” to make the information public. If there were, she said, the provincial government would have introduced legislation to enable this.

Payments from OHIP are really “patient money” rather than public funds, Galessiere said. There would be “a lot more accountability” if patients were billed directly by their doctors and they then forwarded those bills to the province for reimbursement. “It might make people not visit the doctor as much,” she said.

Lawyer Iris Fischer, representing the Star, said that in the interest of transparency and accountability of government expenditures, physician-identified billing should be public:

“There is no principled reason why physicians’ billings should not be subject to the same transparency as payments to senior employees, businesses, consultants, lawyers and other parties receiving funds from government, all of which are disclosed to the public.”

The “real argument” being put forth on behalf of the profession is that “doctors are different,” Fischer said, adding that this is not consistent with freedom of information legislation.

The public and media should have access to such information so they can ask questions, identify anomalies and confirm appropriateness, she said.

“How many people is that doctor billing on behalf of? What is the size of his or her practice? What are the possible implications of billing (for working) 366 days a year?” Fischer asked, referring to a finding in last year’s provincial auditor’s report.

“Maybe the real reason is a high-billing doctor is actually overworked in an underserviced area. It’s a structural problem that needs to be addressed by the ministry,” she continued.

The panel reserved its decision.

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